I am a California attorney. After 31 years of practice, I find myself in the enviable position of semi-retirement. As my practice winds down, I have had the luxury to follow the Coleman election challenge closely, both reading court filings and watching a good deal of the proceedings. I consider The BRAD BLOG the most extensive and thorough source of the dangers of E-voting. I felt, however, it would be useful to provide a legal analysis of the present state of the Coleman challenge.

Brad Friedman's described the latest effort by team Coleman to challenge absentee ballots it had previously agreed were properly opened and counted, as a "flip-flop,". While accurate, the term does not begin describe the deep legal dilemma now faced by Norm Coleman's attorneys in the U.S. Senate election contest in Minnesota...

On Dec. 18, 2008, in response to Coleman's effort to prevent the opening and counting of erroneously rejected absentee ballots, the Minnesota Supreme Court ordered that local election officials open and count absentee ballots only where both the Coleman and Al Franken campaigns agreed. The ensuing process resulted in the opening and counting of 933 absentee ballots. These 933 absentee ballots produced a net gain of 176 votes for Franken.

After Franken was declared the winner on Jan. 5, 2009 by the State Canvassing Board, Coleman filed notice he was contesting the election. On Feb. 3, 2009 the Coleman and Franken legal teams entered a legally binding stipulation [PDF] that the 933 ballots were "properly and lawfully counted" and "properly and lawfully included in the results of the 2008 United States Senate Election as certified by the Minnesota State Canvassing Board." As part of the stipulation, Coleman agreed to "dismiss with prejudice all claims in the Notice of Contest relating to the 933 Ballots." These stipulations were approved by the three judge panel selected to preside over the election contest.

The Coleman legal team then adopted a strategy of seeking to have approximately 4,800 additional absentee ballots opened and counted. It sought to by-pass the strict anti-fraud requirements of Minnesota law for absentee ballots --- for example, the voter must be registered and must sign the return envelope before a witness who is also a registered voter; the addresses of both the witness and the voter must be on the ballot, and the voter's address must be the same as that listed on their absentee ballot application. Coleman sought to offer the absentee ballots en masse, by simply categorizing them under the reasons for rejection, as given by election officials.

On Feb. 13, 2009 the three-judge panel expressly rejected [PDF] Coleman's position, writing: "Proving that the reason given by election officials for rejecting a ballot was invalid is not tantamount to proving that it was legally cast." The court imposed a burden upon the Coleman legal team to prove that a previously rejected absentee ballot had, indeed, been lawfully cast.

The weakness of Coleman's strategy, in simply pointing to whether an absentee ballot was improperly rejected, was underscored by the subsequent testimony of a county election official. Coleman's attorney brought out the fact that a ballot was improperly rejected, and the county official, looking only at the return envelope, conceded she saw no reason why the ballot should not be opened and counted. However, cross-examination by Franken's attorney revealed that local election officials had notified the voter of the error and that the same voter had signed the precinct ledger and voted on Election Day. It was revealed that by now opening and counting that particular "improperly rejected absentee ballot", the court would be permitting one individual to vote twice.

While Franken attorney Marc Elias was circumspect in estimating the impact the February 13th ruling had on the "ballot universe" (the number of unopened absentee ballots still in play), the increasingly strident claims made by the Coleman legal team both inside and outside the courtroom, about Minnesota's allegedly "fatally flawed" electoral system, along with a repeated inability to introduce relevant, admissible evidence during the past week, strongly suggests that the Coleman effort to demonstrate that he had received more lawfully cast votes than Franken is dead in its tracks.

In a Feb. 16, 2009 letter seeking reconsideration [PDF] of the Feb. 13 order, Coleman suggested that amongst the 933 ballots previously found to have been "properly opened and counted" there were "scores" that did not meet the standards set forth in the court's order. On Feb. 17, 2009 the three-judge panel summarily denied this request [PDF]. In a separate ruling [PDF] excluding a Coleman expert witness on this issue, the court stated: "The Court will be reviewing all ballots presented according to the uniform standard contained in Minnesota Statutes….It is irrelevant whether there were irregularities between the counties in applying Minnesota Statutes…prior to this election contest."

It was against this background that Coleman filed a Feb. 20, 2009 motion seeking a temporary injunction [PDF] to prevent the Secretary of State from redacting the envelopes associated with the previously counted 933 ballots, contending that "many" of these ballots opened and counted "fall into one or more of the categories of ballots that the Court has now ruled are 'not legally cast'" Coleman suggests that his earlier stipulation was based on the assumption that the 933 would be "reflective of the standards" that the court would apply to the remaining ballots.

Having practiced law for more than 31 years, I was stunned by this motion.

As The BRAD BLOG previously observed, the Franken legal team had pointed to questions of estoppel and invited error with respect to Coleman's effort to reverse legal positions it had taken previously during the recount. This latest reversal entails something far more significant. The court-approved stipulation that the 933 votes were lawfully cast and counted, and agreement to dismiss, with prejudice, all claims made against the 933 ballots amounted to a final ruling by the court that the 933 were lawfully cast ballots. Coleman waived the right to so much as even suggest that any of those 933 ballots were not lawfully cast. Coleman's motion is frivolous and, as suggested by Franken's opposition [PDF], warrants the imposition of sanctions.

The status of this election contest is deeply troubling. It has become increasingly apparent that the Coleman position is devoid of merit, yet his team plods on, delaying the seating of a U.S. Senator at a time when every vote has become essential to the new administration's efforts to bring this nation back from the edge of an economic abyss. Perhaps, for the Party of "No" delay is a victory.

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Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers' compensation at both the trial and appellate levels. He graduated from Southwestern University School of Law where he served as a student director of the clinical studies department and authored a Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He's also a Vietnam vet (4th infantry, Central Highlands 1968).

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Thank you for a clear and cogent case for the barrenness of Mr. Coleman's position and arguments.

Many observers have complained about the slow pace, and the lack of constraint on the Coleman side that these judges have tolerated thus far. My sense is that they are bending over backwards to ensure that the Coleman camp has every opportunity to argue their case in toto. My guess is that they too are mindful of the likelihood of appeal here and want to close every door only after exploring fully what possibilities it reveals.

Meanwhile, they have given all kinds of hints to the Coleman camp on how to advance their cause, and I have seen absolutely no indication that Coleman's team has even made a minimal effort in that direction, beginning with their presentation of altered and incomplete exhibits as evidence on the first day. Surely their team should be spending any spare time available to search out ballots which can be proven to warrant being counted, meanwhile they continue down the path of trying to demonstrate that different standards were used, while the Franken team comes along behind them and shows why that doesn't matter because the ballots in question were rejected for very appropriate entirely different reasons than those presented by the Coleman team. I am appalled at how amateurish the preparation and presentation of their case proves to be every time a Coleman Lawyer opens his mouth.

If I were Coleman I would be preparing a legal malpractice suit so that he has a chance of recovering the enormous bill he's going to incur by losing. Alternatively, I suppose he might try praying for a miracle, but my sense is they've been in short supply lately.

As a former resident/ voter of Sarasota Co., Fl. I am just floored that MN has laws in place that allow this lawsuit to continue despite it's lack of merit. To think that we could not even DELAY the seating of Vern Buchanan until all the lawsuits, audits, and "independent" tests had been settled when there was ample evidence that as many as 18, 412 votes for Christine Jennings may have been dropped by the ES&S iVotronic machines...

I shudder to think of the field day the local press would have had with her for the kind of behavior we are seeing from Coleman's camp. The wide discrepancies in Election Law from state to state shocks me, still.

I too echo the sentiment that this was an excellent piece. A crystal-clear and concise analysis of what can now only be described as "shenanigans!" by Coleman's team of monkeys. It's damn near March and Minnesotan's don't have full representation in the Senate, while this case must be racking up quite the public bill.

Could you even imagine the faux outrage- but very real coverage- of the Reich-wing were the situation reversed? My goodness they would be going ape-shit apoplectic! And do we see any coverage of this on national news? I sure haven't, beyond Maddow and Olbermann.

thank you Mr. Canning for this excellent piece. I admit I need to read it a few times to fully understand all your points being that I'm a layperson. obviously Coleman is doing everything he can to stop Franken from being seated so even each day Franken is delayed from taking his Senate seat is a victory for the Coleman camp.

The GOP who is financing this lawsuit should be ashamed of themselves but they have no honor, no decency and have proven time and time again that the results justify the means.

It has been obvious for some time that the prime strategy for Coleman's lawsuit has been to delay the seating of democratic Senator-Elect, Al Franken.
They seem to be winning that battle even though they know the war is already lost.

What this has demonstrated is the republican party's overriding allegiance to 'power' over what is best for the people of Minnesota and the country.
They really do not know the meaning of 'patriotism' nor 'loyal opposition' do they?

Comment to colinjames who said on 2/22/2009 @ 6:33 pm PT... "this case must be racking up quite the public bill."

IF Franken prevails, Coleman will be have to pay court costs including Franken's legal bills.
That stated, the Minnesota courts are overburdened
and this is taking three judges out of their normal duties ... plus impacting the MN Supreme Court with Coleman's appeals.

I looked at some of the more recent documents on line. Canning has spent more time looking at them than I have, but it isn't all that clear to me that this case will be resolved within the next few weeks. The object may be to simply delay seating Franken for some months rather than to get the seat for Coleman.

The length of time that it takes full adjudication in the US is dependent upon the amount of money that one has, and just how tenacious one is in fighting a case. Judges become frightened by bulldog behavior, and start to practice defensive law. They pursue every avenue to protect against a reversal of their verdict.

I have been following one case in operating systems that has been going on for five years, where the plaintiff has absolutely no case whatsoever. Not only do they have no case, but it seems that they illegally converted money due to the defendant. The judge is crossing every t and dotting every i to the great cost of the defendant while the plaintiff is frittering away the funds due the defendant. Even though the defendant won the case with all of this "extreme care" on the part of the judge, the plaintiff is still appealing. In this case, the collateral damage, the cost to the community of users is far greater than anything incurred by the plaintiff or the defendant.

At some point there should be a way of saying enough is enough, that cases don't go on for the better part of a human life span, and that an increasingly heavy cost is incurred by the loser who keeps appealing and sanctions for their law firm. After all, one side has an essentially unlimited liability in a court case, why shouldn't the other side risk a significant penalty as well?

The machinations and prevarications of one side of this court battle are rather clear, and I have been shocked that sanctions were not imposed for the absolute unprofessional, unethical and possibly illegal behavior committed by one side. That the judges allowed such behavior without dismissing the case with prejudice is an indictment of the cowardice of the judges.

Is there any option for a MN voter to file a civil suit against Coleman for infringement on a citizen's right to representation? There seems to be no legitimate reason for Coleman to continue his legal challenge against Franken's election.
From all appearances Coleman's efforts are directed at obstuction to Franken's (and the citizens of MN) legitimate right to be seated in the Senate.

I am annoyed, simply by the fact that the Dems are not getting all the representation deserved, besides. I am thoroughly infuriated by Coleman's temper tantrums, because things aren't going his way. We all would like to move along with Democratic Senatorial representation. But we've got to tend to little Normie's huffing and puffing. If it were justified, that would be another thing, but it's obviously beyond that now. He is falling over his protruding lower lip.

I so appreciate also, this excellent piece by Mr. Canning putting the entire situation in a clear comprehensive essay. Applause!

or know where to let Brad et. al. know about it? Seems Coleman has been _lying_ in court.. They are clearly gaming this court action, and the Dems should just tell Coleman to fuck off and seat Franken.